Limpic v Mawere and Ors (Appeal 121 of 2006) [2008] ZMSC 138 (24 July 2008)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 121/2006 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN TREVOR LIMPIC Appellant AND RACHEL MAWERE CAROLINE MAWERE COLLINS MAWERE 1st Respondent 2nd Respondent 3rd Respondent Coram: Lewanika, DCJ. Chitengi and Silomba, JJS. on 18th September, 2007 and 24th July, 2008. For the Appellant : Mr. J. P. Sangwa of Messrs Simeza, Sangwa & Associates For the Respondents : Dr. R. M. A. Chongwe , S. C. of Messrs R. M. A. Chongwe & Company JUDGMENT Chitengi, JS delivered the judgement of the court. Case referred to: - 1. Mundia V Sentor Motors Limited (1992) ZR 66. ta2» Carver Foel Jere V DVR/SGT Shamayuwa and Attorney- General (1978) ZR 204. 3. Re Robinson Settlement, Grant V Hobbs (1978) 1 CH D. 728. 4. Anderson Kambela Mazoka V Levy Patrick Mwanawasa (2005) ZR 138. Statute referred to: - 1. Lands and Deeds Registry Act Chapter 185 of the Laws of Zambia; Sections 33 and 34. - J2 - When we heard this appeal the late Honourable Deputy Chief Justice Honourable Mr. Justice D. M. Lewanika was a member of the panel but he passed on before this judgment was ready for delivery. This judgment is, therefore, the judgment of the majority of the panel that heard the appeal. This is an appeal against the judgment of the High Court which ruled that the Appellant returns to the Respondents the property known as Riot No. 5508 Lusiwasi Road, Kalundu, Lusaka (hereinafter referred to as the property in question) which he bought from one Martin Mawere who was the second Defendant in the court below. The facts of this case can be briefly stated. One Hezron Keshu Mawere, the father of the Respondents and one Martin Mawere who was the second Defendant in the Court below, died intestate in 1975 leaving inter alia, the property in question. Following the death of Hezron Keshu Mawere, his father, one Jackson Gash Mawere was appointed administrator of the estate of the late Hezron Keshu Mawere. The property in question then was on rent to one Fernandes. Later Jackson Gash Mawere the administrator also died in 1993 and no administrator of the estate of the late Hezron Keshu Mawere was appointed. Martin Mawere became in charge of the property in question when Jackson Gash Mawere became sick. In 1996 Martin Mawere, without the knowledge and consent of the other siblings, sold the property to one Fernandes who was a tenant in the property in question at very little amount and Fernandes later sold the house to the Appellant at K30,000,000.00. Fernandes, who appears to be a rogue, did not give Martin Mawere the little sale price and after selling the house to the Appellant disappeared. The first Respondent started hearing rumours about the property in question being sold. - J3 - A check at the Lands and Deeds Registry in 2000 revealed that Martin Mawere had sold the property in question to the Appellant on 27th June, 1996. When questioned about the sale of the property in question by the other siblings Martin Mawere expresses ignorance. Thereupon^ the first Respondent was appointed administrator of the estate of the late Hezron Keshu Mawere. 'During the sale transaction a search was made at the Lands and Deeds and Registry by an advocate and the property in question was found to be free of any encumbrances. Martin Mawere said he was selling the tproperty in <his capacity as the administrator and informed the Registrar of Lands and Deeds that his family had decided to sell the property in question because they owed Fernandes a lot of money. On this evidence, the learned trial Judge found that Martin Mawere had no authority to sell the property in question and this sale was tainted with fraud. Thereupon, the learned trial Judge found for the Respondents and ordered the- cancellation of the Certificate of Title------ issued in the name of the Appellant following the sale to him of the property in question. The Appellant now appeals to this Court against the judgment of the court below advancing four grounds of appeal. The first and second grounds of appeal are basically one. Although these two grounds of appeal are long, their sum and substance is briefly that the learned trial Judge erred in law and fact when he held that the appellant did not acquire good title to the property in question. The third ground of appeal is that the court below misdirected itself on point of law when it decided to entertain the case when the same has - J4 - been commenced by way of a general Writ of Summons instead of being presented before it by way o an appeal against the decision of the Registrar of Lands and Deeds Registry as provided for in Section 87 of the Lands and Deeds Registry Act1!. In the view we take of this ground of appeal we can dispose of it before proceeding further. Counsel for Respondents puts in the fore '-r- -’ fnpnt ofJiis arguments on this ground that this issue was not raised in ,, the court below but says that the court cannot ignore statute or the decisions of this court. In our view, it is not a question of ignoring a •o-e?.-statute, a . The issuei-jfaised was not pleaded and argued in the court below and the learned trial Judge did not rule upon it. As an appellate court we can not properly deal with it now. We do not know what the learned trial Judge’s holding on this would have been. We say no more about this ground of appeal. The fourth ground of appeal is that the court below misdirected itself on-a- point of law when it decided to entertain the case filed in September, 2003 notwithstanding the presence of evidence which showed that the act which formed the basis of this action, that is the u;. registration of the property in the name of the Appellant, occurred in June 1996. Like in ground three, counsel for the Appellant also states in this ground that this issue was not raised in the court below. What we have said in ground three applies to this ground of appeal also and we say no more about it. The only grounds of appeal we have to deal with in detail are grounds one and two. - J5 - Both counsel filed detailed written heads of argument which they augmented with brief oral arguments. Mr. Sangwa, learned counsel for the Appellant, argued grounds one and two together. The gist of Mr. Sangwa’s written heads of argument is that the learned trial Judge determined this case on the basis whether Martin Mawere who was the second Defendant had power to 5.vr'-dispose (of the property in question when the relief sought was the cancellation of the certificate issued to the Appellant. It is Mr. Sangwa’s submission that the issuance and cancellation of certificate .•a;; of•.tittejeis. governed by the Lands and Deeds Registry Act1) -wnj specifically Section 33 which deals with the legal consequences of the . issuance of a certificate of title to anyone. It is argued that the issuance of a certificate of title is conclusive proof of the fact that the person named in the certificate of title is the owner of the land which is the subject of the certificate of title notwithstanding the existence of any interest in any other person. Further, it was argued that for anyone to bring an action in matters of this nature one must demonstrate that the case comes with the exceptions in Section 34(1)(2). Furthermore, it is submitted that the Respondents did not allege fraud and that the property in question was acquired through fraud. The submissions then recite the evidence and state that the Appellant spent some K2 billion on transforming the property in question; that the transaction was handled by an advocate of long standing who saw the letters of administration; that the Appellant cannot be held responsible for non compliance with the Succession Law; that the Appellant was a bona fide transferee for value without notice and there - J6 - is nothing to show any impropriety on the part of the Appellant on his mother who managed the entire transaction. According to Mr. Mensa, the advocate, who handled the transaction, Martin Mawere’s letters of administration were a renewal (whatever that may mean). Dr. Chongwe, learned Counsel for the Respondents, submitted that Martin Mawere had no powers to confer title to anybody just as Fernandes who sold the property to the Appellant had no title in the property in question. It was Dr. Chongwe’s submission that because of this reason no proper transfer was done in this case. On the argument that the learned trial Judge decided the case on different basis, Dr. Chongwe submitted that pleadings were exchanged and no complaint was made about the statement of claim. Dr. Chongwe’s oral submissions were basically a repeat of his written heads of argument and emphasized that the Appellant was not a bona fide purchaser for value without notice. He pointed out that Mrs Limpic, the one who bought the property from Fernandes, did not even see Martin Mawere’s letters of appointment as administrator and the transaction does not reflect what actually happened. He argued that the learned trial Judge was correct to find that there were no documents, and even now, there are no documents authorising this transaction. In reply, Mr Sangwa submitted that according to the pictures exhibited in the motion for stay of execution the old structure was non existent and the property has been completely redone and re­ developed. He pointed out that the Registrar of Lands and Deeds Registry adjudicated on this matter and found no fraud. He said - J7 - contrary to the learned trial Judge’s finding no fraud was pleaded. It was Mr Sangwa’s submission that the learned trial Judge restated the Respondent’s case and found for Appellant on fraud. Lastly, Mr. Sangwa submitted that there was no fraud on the part of the Appellant. We have carefully considered the evidence that was before the learned • trial Judge, the submissions of Counsel and the judgement appealed against. .<xi.we understand the evidence, arguments and submissions of inr" Counsel, the critical issue in this appeal is whether the Appellant who . - acquired, .title was a bonafide purchaser for value without notice, whose title is unassailable. According to Mr. Sangwa, learned Counsel for the Appellant, the Appellant’s mother or the Appellant himself was not guilty of any impropriety and was not aware of any wrong doing on the part of the person who sold the property in question to the Appellant’s mother who later gave the property in question to the Appellant as a gift. On the other hand Dr Chongwe, learned Counsel for the Respondent, submitted that the whole transaction smacked of fraud. He pointed out that there was no evidence that Martin Mawere had been appointed Administrator of the estate of Hezron Keshu Mawere for Martin Mawere to have authority. We have carefully considered these submissions in the light of the evidence. We agree with Dr. Chongwe’s submission that at the time of the transaction there was nothing to show that Martin Mawere had letters of administration showing that he was the appointed Administrator of the estate of the late Hezron Keshu Mawere. Although Martin Mawere is named in the Deed of Assignment as the Administrator of the late Hezron Keshu Mawere, no letters of - J8 - administration in the name of Martin Mawere came from the Lands and Deeds Registry. In fact, no witness was called from the Lands and Deeds Registry to testify on this matter. Mrs Limpic who, from the evidence appears to be a circumspect lady, asked Mr Mensa the advocate who handled the transaction for letter of transaction but the advocate could not produce the letters of administration to Mrs Limpic. All that the advocate did was to tell off Mrs Limpic that as a lawyer he could not recite the appointment of Martin Mawere in the Deed of Assignment as Administrator if he had not seen the letters of administration appointing Martin Mawere as an Administrator. Nor did the Advocate himself produce any copy of the letters of administration from his office file. The evidence, therefore, drives us, as it did with the learned trial Judge, to the inescapable conclusion that there were no letters of administration in the name of Martin Mawere at the time of the transaction upon which Mrs Limpic who purchased the property or the Appellant in whose name the property was subsequently registered, could entertain any reasonable belief that Martin Mawere had the authority to sell the property in question and that this transaction was not fraudulent. It has been argued on behalf of the Appellant that the Registrar of Lands and Deeds adjudicated on this issue and found that there was no fraud. We have read the letter the Acting Chief Registrar of Lands and Deeds wrote to the first Respondent and that letter does not say that Martin Mawere had letters of administration appointing him Administrator of the estate of Hezron Keshu Mawere. Martin Mawere himself gave evidence, which is an agreement with all the other evidence taken together, that he was never appointed administrator of estate of Hezron Keshu Mawere. In fact, the Acting Chief Registrar of Lands and Deeds refers to Martin Mawere as a - J9 - purported Administrator. We know what the word “Purport” means. This confirms that there were no letters of administration in the name of Martin Mawere at the Lands and Deeds Registry otherwise the Acting Chief Registrar could not refer to Martin Mawere as the purported Administrator instead of the Administrator. In the event, the fact that the transaction was fraudulent stands out clear. The thrust-of the arguments, on behalf of the Appellant is that, the Appellant acquired good title and that in terms of Sections 33 and 34 of the Lands and Deeds Registry Act1) the Appellant’s title can only be assailed-,: inter alia, on grounds of fraud but that in this case fraud was not pleaded. We agree that fraud was not pleaded. And we are constrained to observe that given the facts of this case the Statement of Claim was not settled in the happiest terms. But after reading the record of evidence in the Court below, it is clear to us that the evidence that was being led by the Respondents clearly showed that Martin Mawere committed a fraud on his siblings. It is trite that a party wishing to rely on a matter, must plead that matter. The function of pleadings was clearly stated in Mundia V Sentor Motor Motors!1) where the court said:- “The function of pleadings is very well known, it is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties. Once the pleadings are closed, the parties thereto are bound by their pleadings and the court has to take them as such. ” In the case of Carver Foel Jere V DVR/SGT Shamayuwa and Attorney-General!2) this court stressed the point on pleadings when it said: - - J10 - “It is one of the cardinal rules of pleadings for the party to tell his opponent what he is coming to court to prove and to avoid taking his opponent by surprise. If he does not do that, the Court will deal with it in one of the two ways. It may say it is not open to him, that he has not previously raised it and will not be allowed to rely on it; or it may give him leave to amend by raising it and protect the other party if necessary by letting the case stand down. ” But where any matter not pleaded is let in evidence and not objected i-to by the other partyrcthe court is not and should not feel precluded from considering it. The case Re Robinson Settlement, Grant V Hobbs/3) emphasized this position when the court said: - “The rule is not one that excludes from the consideration of the Court, the relevant subject matter for decision simply on the ground that it is not pleaded. It leaves the party in mercy and the -------court will deal with him as is just.”: These cases were cited with approval in the case of Anderson Kambela Mazoka and Others V Levy Patrick Mwanawasa and Others/4) e In this case fraud was not pleaded but evidence alleging fraud on the part of Martin Mawere was let in without objection from the Appellant. On authority, the learned trial Judge was, therefore, not precluded from considering the evidence alleging or suggesting fraud, as he did, and came to the conclusion that the transaction was fraudulent. It has been argued on behalf of the Appellant and his mother that they were not guilty of any impropriety. We agree. The evidence suggests to us that the Appellant and his mother are honourable persons and - Jll - particularly that the Appellant’s mother is a circumspect lady. But the fact that the property in question was transferred to the Appellant because of the fraud of Martin Mawere looms large in our minds There having been fraud, the title of the Appellant was properly challenged and in terms of Section 34 of the Lands and Deeds Registry Actf1) the learned trial Judge was on firm ground to cancel A,. , the certificate of title issued to the Appellant and to order that the property in question reverts back to the estate of Hezron Keshu Mawere. For these reasons, we uphold the learned trial Judge’s judgment and we dismiss the appeal for lack of merit. But before we leave this matter, we wish to say that from the pictures which were shown in the motion that was made in this appeal, the appellant has expended a lot of money on the property in question. To allow the Respondents to take the property in question with the massive improvements made by the Appellant will amount to unjust enrichment of the Respondents. Equity will not allow that. We, therefore, order that the improvements be assessed by the Deputy Registrar and the Appellant be paid by the Respondents the worth of the improvements. For avoidance of doubt, this judgment is not a bar to the Appellants and the Respondents entering into a genuine transaction for the sale of the property in question from the Respondents to the Appellant, if the parties so wish. - J12 - The appeal having failed the Respondents will have their costs to be agreed upon and in default to be taxed. D. M. LEWANIKA DEPUTY CHIEF JUSTICE S. S. SILOMBA SUPREME COURT JUDGE